De Maria and Secretary, Department of Education and Training

[2017] AATA 1989

De Maria and Secretary, Department of Education and Training [2017] AATA 1989 (27 October 2017)

Division:GENERAL DIVISION

File Number:          2017/4720

Re:Nigal De Maria

APPLICANT

AndSecretary, Department of Education and Training

RESPONDENT

DECISION

Tribunal:Senior Member T. Tavoularis

Date:27 October 2017

Place:Brisbane

The application for the Tribunal to dismiss application number 2017/4720 for want of jurisdiction is refused.

...............[sgd]................................................

Senior Member T. Tavoularis

CATCHWORDS

JURISDICTION – whether original decision a reviewable decision – Lawlor principle –where relevant legislation defined a reviewable decision – where original decision purported to be a reviewable decision – the Tribunal has jurisdiction – application to dismiss the matter refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) ss 3, 25
Higher Education Support Act 2003 (Cth) ss 36-20, 36-21, 104-25, 206-1, 209-5, 209-10, 212-1

REASONS FOR DECISION

Senior Member T. Tavoularis

27 October 2017

INTRODUCTION

1. Mr Nigal De Maria (“the Applicant”), for reasons that are immaterial for present purposes, withdrew from a course he was studying at the University of New England (“UNE”) in Trimester 2, 2016. After withdrawing, he requested a refund of the fees he had paid, on the grounds that “special circumstances” led to his being unable to complete the course.

2. The Applicant’s request was rejected by UNE both at first instance and on appeal. He now seeks review of that decision.

3. This decision, however, is in relation to an application by the Department of Education and Training (“the Respondent”) for the Tribunal to dismiss this matter on the grounds that the Tribunal lacks jurisdiction to review the decision[1] made by UNE.

   [1] That is, the second decision, which reviewed and affirmed the original decision by UNE.

4. For the reasons below, I find that the Tribunal does have the jurisdiction to review this application. The Respondent’s application is, correspondingly, refused.

   THE PARTIES’ SUBMISSIONS

5. At the heart of the Respondent’s submissions as to why the Tribunal does not have jurisdiction to hear this matter lies the fact the Applicant paid for his course up front and in full, as opposed to receiving FEE-HELP assistance to fund his studies.

6. The Respondent submitted that, to be a “reviewable decision” under s 206-1 of the Higher Education Support Act 2003 (Cth) (“the Act”), the original decision must have been a “refusal to re-credit a person’s *FEE-HELP balance” in accordance with s 104-25(1). Under s 209-10, reviewable decisions can be reviewed upon request by a person whose interests are affected by them.

7. Under s 212-1, the Tribunal can review “a reviewable decision that has been confirmed, varied or set aside” by a review under s 209-10.

8. The Respondent submitted that, as the Applicant never incurred a FEE-HELP debt for the course for which he sought review (owing to the fact he paid for the course out of his own pocket), no reviewable decision arose, and so no valid review under s 209-10 could have taken place for the Tribunal to review.

9. The Respondent further submitted that neither the decision to refuse to refund the Applicant nor the review of that decision was purported to have been made under s 104-25(1).

10. The Applicant submitted that he was simply following the advice provided by UNE in applying to the Tribunal and conceded that he could be of little assistance in terms of making formal submissions on this jurisdictional question owing to his lack of legal training. This is appreciated by the Tribunal.

    THE LAW

11. The starting point for any discussion of the Tribunal’s jurisdiction must be the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”). Relevantly, s 25(1) provides:

    An enactment may provide that applications may be made to the Tribunal:

    (a)for review of decisions made in the exercise of powers conferred by that enactment; or

    (b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.

12. “Decision” is defined in s 3(3) of the AAT Act:

    Unless the contrary intention appears, a reference in this Act to a decision includes a reference to:

    (a)making, suspending, revoking or refusing to make an order or determination;

    (b)giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;

    (c)issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;

    (d)imposing a condition or restriction;

    (e)making a declaration, demand or requirement;

    (f)retaining, or refusing to deliver up, an article; or

    (g)doing or refusing to do any other act or thing.

13. The Tribunal’s jurisdiction is limited to reviewing decisions which are considered “reviewable decisions” for the purposes of the Act. However, under what is known as the Lawlor principle, the Tribunal does have jurisdiction to review decisions that appear to be reviewable decisions. Bowen CJ in Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd (“Lawlor”) stated:

    …in my opinion an applicant to the Tribunal has standing and the Tribunal has jurisdiction provided there is a decision in fact and provided further that the decision purports to have been made in exercise of powers conferred by an enactment whether or not as a matter of law it was validly made and whether or not action on the basis there was power to make the decision was right or wrong.[2]

    [2] Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338, [23] (Bowen CJ).

14. Essentially, answering the question requires the Tribunal to make a finding of fact regarding whether the decision sought to be appealed by the Applicant was in fact a “reviewable decision” within the meaning of s 104-25 of the Act, or, for present purposes more crucially, whether that decision purported to have been made in the exercise of those powers.

    CONSIDERATION

15. I have turned my mind to whether the first decision provided to the Applicant by UNE could constitute a “reviewable decision” for the purposes of s 104-25 of the Act, or purports to be a decision of that class.

16. Resolution of the point is a matter of relatively short compass. The Respondent sought to question the Tribunal’s jurisdiction on the grounds that the original decision[3] was not made under s 104-25 of the Act. Consequently, in its submission, the Respondent thought it could not be a “reviewable decision”, such as to attract the Tribunal’s jurisdiction.

    [3] That is, the decision made on 23 May 2017 (see attachment I to the Respondent’s submissions dated 11 October 2017).

17. The first step in resolving this question is to look at the nature of the decision actually made.

18. In the statement of reasons of the original decision by UNE,[4] it described the statutory framework as:

    STATEMENT OF REASONS

    Statutory Framework

    Paragraph 36-20(1) of the Higher Education Support Act 2003 (HESA) provides that a higher education provider must, on the Secretary’s behalf determine that this section applies if (d) the provider is satisfied that special circumstances apply to the person.

    [4] Attachment I to the Respondent’s Submissions dated 11 October 2017. I further note that in UNE’s internal review process, the statutory framework behind the decision was also recorded as “Paragraph 36-20(1) of the Higher Education Support Act 2003 (HESA)” – see attachment K to the Respondent’s submissions dated 11 October 2017.

19. The test in s 36-20(1)(d) of the Act is provided in s 36-21:

    1For the purposes of paragraph 36-20(1)(d), special circumstances apply to the person if and only if the higher education provider is satisfied that circumstances apply to the person that:

    (a)are beyond the person's control; and

    (b)do not make their full impact on the person until on or after the *census date for the unit of study; and

    (c)make it impracticable for the person to complete the requirements for the unit during the period during which the person undertook, or was to undertake, the unit.

20. The original decision-maker’s conclusion, to reject the Applicant’s request, was framed in terms of ss 36-20 and 36-21:

    To be satisfied that special circumstances apply the Remissions Review Committee must be satisfied in respect of all three matters specified in section    36-21 of the HESA. On the evidence available to it, the Committee is not satisfied of those matters, and the request in respect of EDPL504A remission of HELP of the unit/s cannot be made.

21. On its face, this decision was made under s 36-20. Unfortunately for the Applicant, it seems that this decision was defective: as the unit the Applicant sought to withdraw from was not a Commonwealth Supported Unit,[5] it is hard to see how he could have been enrolled as a “Commonwealth supported student” in it. Consequently, it is far from clear that the decision would have been properly made under s 36-20. Similarly, as the Applicant never accrued a FEE-HELP debt (a matter which, in my mind, goes to his credit), nor could a decision be properly made under s 104-25.

    [5] Attachment E to the Respondent’s submissions dated 11 October 2017.

22. It is in situations such as this that the Lawlor principle may apply: although it may be that a decision could not have been, or was not, properly made under a provision, if the decision purports to be have been made under that provision, the Tribunal still has jurisdiction to review it.[6] On the balance, I find that the original decision did purport to have been made in the exercise of powers under s 36-20 of the Act, and so is reviewable by the Tribunal.

    [6] See Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338, [23] (Bowen CJ).

23. First, a plain reading of the original decision creates the impression that it was made under s 36-20. I have already quoted above several sections of the decision which prominently state that the decision was made within the framework of s 36-20. Although similar to the framework under other provisions, including s 104-25, it is nevertheless a distinct set of rules. This, to my mind, is a clear indication that the decision purports to have been made under s 36-20.

24. Secondly, the decision variously refers to “remit[ting] your HELP debt/re-credit[ing] your fees”, and “remission of HELP”. Under s 36-20(e), that provision applies to repayment of fees, or remission of “HECS-HELP debt”. Conversely, s 104-25 refers to “re-crediting of the FEE-HELP balance”. In light of this, it appears that the original decision has adopted the language of s 36-20. The use of “remit”, “remission” and “re-credit” again indicates to me that the decision purports to have been made under s 36-20. In light of this, I also consider it appropriate that the Respondent contended that the decision could not have purported to have been made under s 104-25.

25. Thirdly, both the original and second decision included a review to the Tribunal among the Applicant’s review rights. This is significant because, as is clear from s 206-1, the range of decisions that can be made under the Act and reviewed by the Tribunal is small. The decision, in providing for that right of review, therefore purported to have the character of a decision that could be reviewed by the Tribunal. In light of the above two factors, I find that the decision was thus purported to have been made under s 36-20.

26. Regardless of whether it was a “mischaracterisation on the part of UNE”, as submitted by the Respondent at the Hearing, I am persuaded that the three characteristics of the original decision establish the fact that it purported to have been made under s 36-20 of the Act. Following the Full Court of the Federal Court in Lawlor, and the countless decisions on this point that have followed, that is sufficient to establish that a decision is reviewable.

27. Consequently, the original decision purported to be the decision that s 36-20 did not apply to the Applicant on the grounds that he did not meet the “special circumstances” test in s 36-21. This decision was affirmed in the second decision, dated 14 July 2017.

28. The next question is whether the original decision can be captured as a reviewable decision. Reference to s 206-1 of the Act clarifies the point. That section at Item 1A provides, relevantly, that:

Item	Decision	Provision under which decision is made	Decision maker
1A	A decision that section 36-20 does not apply to a person	Section 36-20	(a) the higher education provider with whom the student is enrolled in the unit; or (b) if the *Secretary made the decision that the section does not apply – the Secretary.

1. It is clear that the original decision purported to be a decision made under s 36-20. Such a decision is one that is captured by Item 1A of s 206-1 of the Act. As such, it is a “reviewable decision” for the purposes of the Act.

2. As the decision under review purports to be a “reviewable decision”, the Applicant was within his rights to appeal the decision within UNE, which he subsequently did. The Applicant is also within his rights to have the second review[7] of the decision ventilated in the Tribunal. Consequently, s 25 of the AAT Act is activated and the Tribunal has jurisdiction to determine the matter.

   [7] I have said “second review” because the Act requires that a decision by a higher education provider be reviewed once in accordance with either s 209-5 or 209-10 of the Act before an appeal can be lodged with the Tribunal – see s 212-1 of the Act.

   DECISION

3. The Tribunal does have jurisdiction to review the decision dated 14 July 2017.[8] The Respondent’s application to dismiss this matter for want of jurisdiction is therefore refused.

   [8] This is the date of the “second review” (appeal) conducted by UNE.

I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member T. Tavoularis

.............[sgd]..................................................

Associate

Dated: 27 October 2017

Date of hearing:	26 October 2017
Applicant:	By phone
Solicitors for the Respondent:	Ms Sarah dell'Aquila (by phone) Ms Sonia Harris (by phone)